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The Eighth Amendment And Medical Consensus On Gender Affirming Care: Reexamining The Dissentals In Edmo V. Corizon, John Parsi
Denver Law Review
Medical and scientific organizations widely adopt the World Professional Association of Transgender Health Standards of Care as the authority on gender affirming care. Despite this consensus, the legal, political, and policy environments often see only controversy. For example, the Ninth Circuit Court opinion in Edmo v. Corizon held that denying an incarcerated transgender person suffering from severe gender dysphoria—resulting in two attempts at self-castration, cutting to reduce genital distress, and suicidal ideations—violated the Eighth Amendment. The majority denied the State of Idaho’s petition for a rehearing en banc, but ten judges joined in three separate dissents to the denial of …
Vol. 100, No. 4: Full Issue, Denver Law Review
Vol. 100, No. 4: Full Issue, Denver Law Review
Denver Law Review
No abstract provided.
Depoliticizing Federal Prosecution, Bruce A. Green
Depoliticizing Federal Prosecution, Bruce A. Green
Denver Law Review
There is broad agreement that federal prosecutors should not use their power to pursue partisan political objectives, but there is stark disagreement about how to prevent them from abusing their power in this way. Geoffrey Berman, a former U.S. Attorney for the Southern District of New York, recently argued that U.S. Attorneys should have complete autonomy and independence from the Attorney General and administration. Attorney General Bill Barr, in contrast, has insisted that Attorneys General should have full control over prosecutors so the administration can be held politically accountable. Neither view fully addresses the problem. Barr minimizes the significant risk …
Impeachment Vs. Indictment: How To Handle Criminality In The Executive Branch, Tiffany R. Murphy
Impeachment Vs. Indictment: How To Handle Criminality In The Executive Branch, Tiffany R. Murphy
Denver Law Review
Whether a sitting president can be prosecuted while in office has been a debated question with no clear answer. During Watergate and the Whitewater investigations, special and independent counsels struggled to decide whether to indict a sitting president. On one side, the Department of Justice (DOJ) guidelines prohibited indictment, on the other, prosecutors were concerned with potential harm to the rule of law if there was no indictment. In most circumstances, a president who engaged in criminal activities should face impeachment, as the Constitution mandates, rather than be subject to criminal proceedings while in office. The only exception is if …
Revitalizing Executive Branch Disqualification: Heeding An Inperfectly Learned Watergate Lesson, Alan B. Sternstein
Revitalizing Executive Branch Disqualification: Heeding An Inperfectly Learned Watergate Lesson, Alan B. Sternstein
Denver Law Review
This country has recently witnessed firsthand that in the consent of the governed, upon which the legitimacy of democratic government stands, also resides democracy’s innate vulnerability—its dependence on a broad fidelity of its citizens to the institutions and norms by which they agreed to be governed. Battered, though not broken, what has protected American democracy through challenges, present and past, were what are often referred to as guardrails of democracy. Although long-term efforts to rectify the nation’s economic dislocations and entrenched power, and to assimilate its continuing demographic changes, are needed to achieve stronger democratic stability, it is to democracy’s …
Tenth Circuit Database Project: 2021-2022 Yearbook, Pelecanos
Tenth Circuit Database Project: 2021-2022 Yearbook, Pelecanos
Denver Law Review
This Note is the product of the Tenth Circuit Database Project, and it analyzes one year of Tenth Circuit data from April 2021 through March 2022. The Project uses two databases, including one that was specifically designed for Denver Law Review and the Tenth Circuit Database Project. The information is displayed using an unconventional approach. It is crafted as a yearbook that compares the Tenth Circuit to a high school. Although the presentation is playful, the Note is a nascent attempt at manipulating the data in a meaningful way. Ultimately, the Note finds several interesting trends in the data, including …
People Ex Rel. K.C. V. K.C.: Icwa Is For All Native Children, Katelyn Elrod
People Ex Rel. K.C. V. K.C.: Icwa Is For All Native Children, Katelyn Elrod
Denver Law Review
In 1978, Congress enacted the Indian Child Welfare Act (ICWA) to address a national issue—child welfare agencies were removing American Indian and Alaska Native children from their homes and placing them in non-Native homes at alarming rates. Systemic bias against Native cultures fueled these removals, which resulted in Native children being stripped of their identities and tribes struggling to pass on their histories and traditions with a dwindling number of Native children in the community. Under ICWA, however, courts must apply certain procedural safeguards in cases involving families with “Indian children.” In People ex rel. K.C. v. K.C., the Colorado …
Municipal Liability: Tensions In The Tenth Circuit, Timothy M. Tymkovich
Municipal Liability: Tensions In The Tenth Circuit, Timothy M. Tymkovich
Denver Law Review
Municipal liability is important to parties but complicated to litigate, with multiple types of claims falling within the municipal liability realm. This Article is a roadmap for litigators and judges in municipal liability cases in the Tenth Circuit. It clarifies the pleading requirements and elements for various types of municipal liability claims. It also highlights some unresolved issues in municipal liability litigation and tensions within the Tenth Circuit and among the other circuits.
Purposivist Reasoning In Federal Civil Procedure, Lumen N. Mulligan, Emily Pennington
Purposivist Reasoning In Federal Civil Procedure, Lumen N. Mulligan, Emily Pennington
Denver Law Review
This invited Article both reviews the Tenth Circuit’s stance on the circuit split addressing repleading counterclaims in amended answers and observes broader interpretive-approach trends in Federal Rules of Civil Procedure cases. In Sinclair Wyoming Refining Co. v. A & B Builders, Ltd., the Tenth Circuit holds that, absent prejudice to the opposing party, the failure to replead a counterclaim in an amended answer does not constitute abandonment; thus, taking the so-called permissive side of a circuit split on this question. In so doing, the Tenth Circuit adopts a purposivist approach to interpretation of the Federal Rules of Civil Procedure. In …
Treatise Tactics, Amy J. Griffin
Treatise Tactics, Amy J. Griffin
Denver Law Review
A judge’s choice of authority is generally governed only by the unwritten social norms of the judiciary, norms which do not exist in canonical textual form and thus are not always visible. Stare decisis norms, those that dictate which judicial opinions are binding on judges, are the subject of endless discussion while the norms that govern the use of non-binding (optional) authority receive little attention by comparison. The selection of optional authority is deemed relatively insignificant, guided by a vague set of tips that are not specifically grounded in theory or empirical data. I conducted an original study of published …
Strategic Considerations For Going En Banc In The Tenth Circuit, Bobby R. Baldock, Joel M. Carson Iii, Bryston C. Gallegos
Strategic Considerations For Going En Banc In The Tenth Circuit, Bobby R. Baldock, Joel M. Carson Iii, Bryston C. Gallegos
Denver Law Review
The vast majority of decisions of the U.S. Court of Appeals for the Tenth Circuit are rendered by a panel of three judges. But sometimes, all active members of the court, and any senior judge who was part of the original three-judge panel, will sit together to decide a particular issue. This process is called “en banc” review. Parties often ask the Tenth Circuit to “go en banc,” as it has been colloquially dubbed, but the court rarely entertains such requests. The substantial disparity between the total number of appeals in the Tenth Circuit each year, the number of en …
Abolishing Peremptory Challenges: A Fair Price To Pay For Just Jury Selection, Micheal Kilbourn
Abolishing Peremptory Challenges: A Fair Price To Pay For Just Jury Selection, Micheal Kilbourn
Denver Law Review
This Comment addresses the opportunity to abolish peremptory challenges in Colorado. A recap of the history of racism and inequality in the United States provides context for a discussion about the present state of this society in terms of fairness within our criminal legal system. This Comment discusses the widely recognized need for remediation of racial discrimination and bias rooted throughout the criminal punishment process but acutely exemplified by jury selection in that setting. An exploration of a recent attempt by the Supreme Court of Colorado’s Rules of Criminal Procedure Committee to catalyze a revision to the state’s Rule of …
The New Private Law Thirty Years After, Martha M. Ertman
The New Private Law Thirty Years After, Martha M. Ertman
Denver Law Review
No abstract provided.
The Decision To Confess Falsely Twenty-Five Years Later: Windows And Walls In Empirical Psychological And Legal Scholarship, Richard A. Leo
The Decision To Confess Falsely Twenty-Five Years Later: Windows And Walls In Empirical Psychological And Legal Scholarship, Richard A. Leo
Denver Law Review
No abstract provided.
Vol. 100, No. 3: Full Issue, Denver Law Review
Vol. 100, No. 3: Full Issue, Denver Law Review
Denver Law Review
No abstract provided.
Revisiting The Yellow Dog Contract Of Mandatory Arbitration: The Federal Arbitaration Act And Employment Rights Twenty-Five Years After Gilmer, Katherine Van Wezel Stone
Revisiting The Yellow Dog Contract Of Mandatory Arbitration: The Federal Arbitaration Act And Employment Rights Twenty-Five Years After Gilmer, Katherine Van Wezel Stone
Denver Law Review
No abstract provided.
Reflections On Critical Race Theory In A Time Of Backlash, Athena D. Mutua
Reflections On Critical Race Theory In A Time Of Backlash, Athena D. Mutua
Denver Law Review
Reviewing my article on critical race theory (CRT), written over fifteen years ago, this Article revisits CRT and its fortunes in this moment of backlash. CRT has become a principal target for erasure in a raging political campaign that seeks to suppress discussions about racial and gender justice. It does so, in part, by using law to compel the miseducation of the American populace, including its children. The campaign suggests, in the case of race, that efforts to promote racial justice, combat racism, and employ race as an analytical lens-antiracism-is racist. That is, the rightwing argument has shifted from the …
Mapping And Mobilizing Legal Criticalities: Making The Move From Diaspora To Collective Or Legal Scholars Making A Difference As Cultural Warriors, Francisco Valdes
Mapping And Mobilizing Legal Criticalities: Making The Move From Diaspora To Collective Or Legal Scholars Making A Difference As Cultural Warriors, Francisco Valdes
Denver Law Review
No abstract provided.
Takings Federalization, Gerald S. Dickinson
Takings Federalization, Gerald S. Dickinson
Denver Law Review
Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …
Arbitrary Arbitrariness Review, Carrie Rosenbaum
Arbitrary Arbitrariness Review, Carrie Rosenbaum
Denver Law Review
The Supreme Court’s recent immigration law Administrative Procedure Act (APA) jurisprudence demonstrates the anti-democratic potential of this judicial review, which has not yet been explored in scholarly literature. Courts’ application of the arbitrary and capricious standard potentially curtails the ability of new presidents to carry out policies via agency action. Scholars have argued that when the courts employ arbitrariness review, their examination of an agency’s reasons for changing a prior Administration’s policy can stymie change and inhibit the will of the people. Further, arbitrariness review can foster volatility. The Supreme Court’s reasoned approach in the Deferred Action for Childhood Arrivals …
A Tribute From The Advisors Of The Denver Law Review In Honor Of The Law Review's One Hundredth Anniversary, Alan K. Chen, Ian Farrell, Nancy Leong, Justin Marceau, Viva R. Moffat, Eli Wald
A Tribute From The Advisors Of The Denver Law Review In Honor Of The Law Review's One Hundredth Anniversary, Alan K. Chen, Ian Farrell, Nancy Leong, Justin Marceau, Viva R. Moffat, Eli Wald
Denver Law Review
No abstract provided.
The “Newest ‘Yellow Peril’”: How American Legal History Shaped The Rise In Asian American Hate Crimes In The Covid-19 Pandemic, Adam Minoru Yasui Estacio
The “Newest ‘Yellow Peril’”: How American Legal History Shaped The Rise In Asian American Hate Crimes In The Covid-19 Pandemic, Adam Minoru Yasui Estacio
Denver Law Review
The perpetual foreigner stereotype is the misconception that people of Asian descent are inescapably foreign and never truly “American.” This stereotype has plagued Asian Americans since the first Asian immigrants arrived in America and it continues to negatively impact Asian Americans today, regardless of the years, or even generations, that they have lived in the United States. This Comment first breaks down the perpetual foreigner stereotype into three “pillars”: First, Asian Americans, despite their best efforts to assimilate, are irreducibly foreign and therefore are unentitled to the rights and protections guaranteed to American citizens. Second, because they are unentitled to …
[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro
[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro
Denver Law Review
Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …
Confronting Intellectual Property Nationalism, Cynthia M. Ho
Confronting Intellectual Property Nationalism, Cynthia M. Ho
Denver Law Review
Stories about nations engaging in vaccine (and medical) nationalism by hoarding limited COVID-19 vaccines and treatments are widespread, but there is a hidden phenomenon that has exacerbated vaccine nationalism and prolonged the pandemic: intellectual property nationalism or “IP nationalism.” This Article coins and explains this term and highlights its negative impacts. Essentially, some nations, primarily of the Global North, are hoarding essential knowledge protected by intellectual property (IP). This Article argues that IP nationalism has contributed to millions of unnecessary deaths and limited the growth of the global economy. Meanwhile, countries and pharmaceutical companies obscure the role of IP nationalism …
Pleading For Pre-Bargain Disclosure In State Legal Ethics, Anthony R. Guttman
Pleading For Pre-Bargain Disclosure In State Legal Ethics, Anthony R. Guttman
Denver Law Review
Plea bargains dispose of over 97% of criminal matters in the United States’ criminal justice system. Proponents of plea bargaining typically justify the practice under the “shadow of trial” theory, claiming that plea bargains reflect predicted trial outcomes minus a discount for the prosecutorial resources saved. But scholars challenge this theory because other factors influence whether a defendant will enter a plea bargain. Among many are attorney competence, workloads, and legal resources. Yet a largely overlooked gap is that state ethics rules undermine the theory responsible for the legitimacy of plea bargaining. Each state has enacted a similar variation of …
Minds Intertwined: The Cognitive Teamwork Of Federal Civil Rulemaking, Jordan M. Singer
Minds Intertwined: The Cognitive Teamwork Of Federal Civil Rulemaking, Jordan M. Singer
Denver Law Review
Amending a Federal Rule of Civil Procedure is an act of intricate teamwork. Members of the Advisory Committee on Civil Rules must make sense of thousands of pieces of information, account for a variety of stakeholder perspectives, and anticipate the consequences of even the most modest rule change. This Article provides a unique look inside the rulemaking process, using personal interviews with Committee members, direct observations of Committee deliberations, and primary source documents to reconstruct the history of the 2020 amendment to Federal Rule of Civil Procedure 30(b)(6). It reveals a complex and deeply layered cognitive process that is likely …
With Liberty And Reinsurance For All: The Deep Case For A Government Backstop In Health Care, Christina S. Ho
With Liberty And Reinsurance For All: The Deep Case For A Government Backstop In Health Care, Christina S. Ho
Denver Law Review
One long-overlooked government function is the provision of reinsurance to insurers and other private entities to help absorb catastrophic costs when losses exceed what those institutions could be expected to bear. Yet the U.S. government fails to reinsure the health plans of ordinary Americans, a step that would shield them from outlier health events. Consider, by contrast, the longstanding federal guarantee to banks and depositors against unusual liquidity risk. The lack of an explicit state-sponsored backstop for health risk is often taken to reflect a national aversion to entitlements. This Article challenges that premise by calling attention to the many …
Afterword: Latcrit At Twenty-Five And Beyond – Organized Academic Activism And The Long Haul: Designing “Hybridized” Advocacy Projects For An Age Of Global Disruption, Systemic Injustice, And Bottom-Up Progress, Francisco Valdes, Steven Bender, Jennifer J. Hill
Afterword: Latcrit At Twenty-Five And Beyond – Organized Academic Activism And The Long Haul: Designing “Hybridized” Advocacy Projects For An Age Of Global Disruption, Systemic Injustice, And Bottom-Up Progress, Francisco Valdes, Steven Bender, Jennifer J. Hill
Denver Law Review
On the monumental occasion of the twenty-fifth anniversary celebration of LatCrit (Latina and Latino Critical Legal Theory, Inc.) as a still thriving and persevering community of critical scholars and activists, this Article offers some reflections on where we have been, where we are now, and where we might go next together as academics and organizers of long-term collective action. Against the current disruptions of a global pandemic, aggravated by planetary climate collapse, disinformation campaigns, and the organized top-down sabotage of U.S. democracy itself, our community responses going forward must be both more democratic and decentralized than ever, as well as …
White Vigilantism And The Racism Of Race-Neutrality, Christian Powell Sundquist
White Vigilantism And The Racism Of Race-Neutrality, Christian Powell Sundquist
Denver Law Review
Race-neutrality has long been touted in American law as central to promoting racial equality while guarding against race-based ddiscrimination. And yet the legal doctrine of race-neutrality has perversely operated to shield claims of racial discrimination from judicial review while protecting discriminators from liability and punishment. This Article critiques the doctrine of race-neutrality by examining the law’s response to white vigilantism in the much-publicized criminal trials of Kyle Rittenhouse and that of Ahmaud Arbery’s assailants.
Yoga As Property: A Century Of United States Yoga Copyrights, 1937–2021, Roopa Bala Singh
Yoga As Property: A Century Of United States Yoga Copyrights, 1937–2021, Roopa Bala Singh
Denver Law Review
Public debate on yoga as property fixates on whether yoga should be owned, asking if yoga can be Indian property. Framed as such, the public discourse obscures a century-long, ravenous arc of yoga ownership in the United States, accumulated by whiteness, beginning in the early twentieth century. What do the stories of yoga in American law tell us and hide about property and intellectual property? In this critical intellectual property (IP) study, I present the first map of U.S. yoga copyrights grounded in quantitative data. The map reflects that yoga has been exponentially “propertized” by U.S. copyright law. My evidentiary …